1

CHANAKYA NATIONAL LAW UNIVERSITY

CRIMINAL LAW- II

CANCELLATION OF BAIL

Final Draft

February, 2019

SUBMITTED TO: SUBMITTED BY:

Dr. FATHER PETER LADIS F. DEEPTANGSHU KAR

FACULTY of Criminal Law-II ROLL NO:1723

COURSE:B.A. LL.B.(Hons.)

SEMESTER:Fourth
 2

Table of Contents
ACKNOWLEDGEMENT ......................................................................................................... 3

DECLARATION ....................................................................................................................... 4

INTRODUCTION ..................................................................................................................... 5

Aims And Objectives ............................................................................................................. 6

Hypothesis .............................................................................................................................. 6

Research Methodology........................................................................................................... 6

Sources Of Data ..................................................................................................................... 6

Review Of Literature .............................................................................................................. 7

Limitations Of The Study....................................................................................................... 8

CANCELLATION OF BAIL: GROUNDS ............................................................................... 9

REVISION PETITION ON GRANTING OF BAIL ............................................................... 12

ANTICIPATORY BAIL .......................................................................................................... 13

CANCELLATION OF BAIL: AN EXERCISE ON DISCRETION ....................................... 28

PRESENCE OF COGENT REASONS FOR BAIL CANCELLATION ................................ 32

CONCLUSION ........................................................................................................................ 33

BIBLIOGRAPHY .................................................................................................................... 34
 3

ACKNOWLEDGEMENT

I would like to take this opportunity to express my profound gratitude and deep regard to
DR. FATHER PETER LADIS F. sir for her exemplary guidance, valuable feedback and
constant encouragement throughout this project.

Her valuable suggestions were of immense help throughout the making of this project.

I would also like to thank my friends and my seniors without whom the making of this
project would not have been successful.

I would also like to extend my gratitude to my parents and all those unseen hands that
have helped me throughout this project.
 4

DECLARATION

I hereby declare that the work reported in the B.A., LL.B (Hones.) Project Report entitled
“CANCELLATION OF BAIL” submitted at Chanakya National Law University is an
authentic record of my work carried out under the supervision of Dr. FATHER PETER
LADIS F. I have not submitted this work elsewhere for any other degree or diploma. I am
fully responsible for the contents of my Project Report.

SIGNATURE OF CANDIDATE

NAME OF CANDIDATE: DEEPTANGSHU KAR.

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

 5

INTRODUCTION
As per Section 439(2) of the Code of Criminal Procedure, a High Court or Court of Session
may direct that any person who has been released on bail under Chapter XXXIII (i.e., relating
to bail) be arrested and commit him to custody.

A person admitted to bail by the High Court could be committed to custody only by the High
Court. Similarly, a High Court has power to stay bail order passed by Session Courts, if it
thinks appropriate to do so.

A Court of Session can cancel the bail granted by itself and cannot cancel a bail granted by
the High Court unless new circumstances arise during the progress of the trial after an
accused person has been admitted to bail by the High Court.

If a Court of Session had admitted an accused to bail, the State may either move the Sessions
Judge if certain new circumstances have arisen which were not earlier known to the State; or
the State may approach the High Court being the Supreme Court under Section 439(2) to
commit the accused to custody.

Section 437(5) confers on the High Court the power to cause any person who has been
released under Section 437 to be arrested and commit him to custody. Section 439(2) of the
Code empowers the High Court to cause any person who has been admitted to bail under
Section 439(1) of the Code to be arrested and commit him to custody. The Supreme Court
has also power to cancel bail allowed by the High Court if there is a wrong exercise of
discretion by the High Court.

Cancellation of bail can be ordered only on stronger grounds, namely, a bail order having
been procured on misrepresentation of facts, bench selection, on inadequate improper
exercise of discretion by the judges or on the proof of the accused interfering with
investigation or trial.

Suspension of sentence may mean conviction postponed or kept in abeyance during pendency
of appeal Section 389 of the Code deals with suspension of execution of sentence pending the
appeal and release of the appellant on bail.

There is distinction between bail and suspension of sentence. One of the essential ingredients
of Section 389 is the requirement for the Appellate Court to record reasons in writing for
ordering suspension of execution of the sentence or order appealed against.
 6

Aims And Objectives:

The researcher’s prime aim is to present a detailed study of Bails under Criminal
Procedure Code through articles, conventions, affirmations, sections, judgments and
decisions

The researcher aims to descriptively provide a critical overview of the topics arising.

The researcher aims to study the landmark cases relating to Bails in india

The researcher aims to study the different types of bails

nd also to deal with the different ways to cancel a bail

Hypothesis:

1. Bail may be cancelled for not fulfilling the bail conditions.

2. Bail can be cancelled by the Supreme Court in case of threat to the society by the one
on bail.

Research Methodology:

The researcher will be relying on Doctrinal method of research to complete the project. These
involve various primary and secondary sources of literature and insights.

Sources Of Data:

The researcher will be relying on both primary and secondary sources to complete the
project.

PRIMARY SOURCES:

1. Criminal Procedure Code (1973)

 7

SECONDARY SOURCES:

1. Websites and Blogs.

2. Books.

3. Law reviews and Magazines.

Review Of Literature:

1. Title: THE CRIMINAL PROCEDURE CODE, 1973. RATANLAL & DHIRAJLAL.

The Code of Criminal Procedure, 1973, is a vehicle for dispensation of justice with its
applicability ranging from trial courts to the Supreme Court. It has continuously evolved
through legislative amendments as well as judicial interpretations over the years to accept its
present form. The commentary has throughout been written lucidly and carries section-wise
discussions, which places it amongst the most authoritative and leading commentaries on the
law of Criminal Procedure in India. The forthcoming edition of this leading work has been
painstakingly drafted to include the latest cases, legislative amendments, current
developments and evolving judicial trends in the law relating to criminal procedure.
Legislative changes over the years have been incorporated and supplanted with latest
judgments of the higher courts. Authenticity, originality and reliability have always been the
hallmarks of this publication and every possible care has been taken in this edition to
maintain the original excellence, style and quality of the work. The current edition is also
supplemented with a quick overview in the form of a summary at the end of the work for a
sharp and prompt understanding of the subject.

2. Title: R V KELKAR’S CRIMINAL PROCEDURE.

This classic work provides an in-depth analysis of the hitherto overlooked aspect of criminal
procedure in the Indian context. Written by R.V. Kelkar in 1977, the book has subsequently
been revised by Professor K.N. Chandrasekharan Pillai, the able student of the author.
Though the topics have been updated and revised, Professor Pillai has ensured that the
originality and freshness of the approach of Kelkar does not get lost. The basic fundamental
principles of criminal procedure have been discussed in a logical sequence. Attempt has been
made to make the study of criminal procedure both meaningful as well as interesting. Topic-
 8

wise arrangement of the subject-matter and analysis of the relevant sections connected with
each individual topic make the commentary a comprehensive and standard work on the
subject. The present edition has been fully updated, providing relevant statute-law and case-
law at the appropriate places. The amendments effected to the Code of Civil Procedure have
been discussed and analyzed. Special emphasis has been placed on the role played by the
Supreme Court in the constitutionalization of criminal procedure. An indispensable book for
practicing lawyers, teachers and students of criminal law; it will also be of immense use to
lawyers, judges, police and other officials concerned with criminal law administration.

Limitations Of The Study:

The researcher has territorial, monetary and time limitations in completing the project.

The researcher is going to limit the project’s scope to the events and status quo of the time in
which the said events unfolded, which paved the way for the development of the topic
discussed.
 9

CANCELLATION OF BAIL: GROUNDS

As per Section 439(2) of the Code of Criminal Procedure, a High Court or Court of Session
may direct that any person who has been released on bail under Chapter XXXIII (i.e., relating
to bail) be arrested and commit him to custody.

A person admitted to bail by the High Court could be committed to custody only by the High
Court. Similarly, a High Court has power to stay bail order passed by Session Courts, if it
thinks appropriate to do so.

A Court of Session can cancel the bail granted by itself and cannot cancel a bail granted by
the High Court unless new circumstances arise during the progress of the trial after an
accused person has been admitted to bail by the High Court.

If a Court of Session had admitted an accused to bail, the State may either move the Sessions
Judge if certain new circumstances have arisen which were not earlier known to the State; or
the State may approach the High Court being the Supreme Court under Section 439(2) to
commit the accused to custody.

Section 437(5) confers on the High Court the power to cause any person who has been
released under Section 437 to be arrested and commit him to custody. Section 439(2) of the
Code empowers the High Court to cause any person who has been admitted to bail under
Section 439(1) of the Code to be arrested and commit him to custody. The Supreme Court
has also power to cancel bail allowed by the High Court if there is a wrong exercise of
discretion by the High Court.1

Cancellation of bail can be ordered only on stronger grounds, namely, a bail order having
been procured on misrepresentation of facts, bench selection, on inadequate improper
exercise of discretion by the judges or on the proof of the accused interfering with
investigation or trial.

Suspension of sentence may mean conviction postponed or kept in abeyance during pendency
of appeal Section 389 of the Code deals with suspension of execution of sentence pending the
appeal and release of the appellant on bail.

1
Mahesh Kumar —V- State of Bihar 2008(2) BBCJ 642. (India)
 10

There is distinction between bail and suspension of sentence. One of the essential ingredients
of Section 389 is the requirement for the Appellate Court to record reasons in writing for
ordering suspension of execution of the sentence or order appealed against.

If he is in confinement, the said court can direct that he be released on bail, or on his own
bond. The requirement of recording reasons in writing clearly indicates that there has to be
careful consideration of the relevant aspects and the order directing suspension of sentence
and grant of bail should not be passed as a matter of routine.2

Bail may be cancelled on the following grounds as per the verdicts of different Courts:

(1) When the person on bail is found tampering with the evidence either during the
investigation or during the trial.

(2) When the person on bail commits similar offence or any heinous offence during the
period of bail.

(3) When the person on bail has absconded and trial of the case gets delayed on that account.

(4) When it is alleged that the person on bail is terrorizing the witness and committing acts of
violence against the police.

(5) When the person on bail creates serious law and order problems in the society and he had
become a hazard on the peaceful living of the people.

(6) When it is found that the subsequent events make out a non-bailable offence or a graver
offence.

(7) When the High Court found that there was a wrong exercise of judicial discretion to grant
the accused bail.

(8) When the circumstances were proved that the accused has misused the liberty granted to
him, it is sufficient ground to cancel bail.

(9) If the life of the accused person on bails itself be in danger.

The anticipatory bail can also be cancelled before the regular bail is actually granted.

2
Janki Das-V-State of Bihar 2009 (1) BBCJ 579. (India)
 11

In State (Delhi Admn.) v. Sanjay Gandhi Supreme Court observed rejection of bail when bail
is applied for is one thing; cancellation of a bail already granted is quite another. It is easier to
reject a bail application in a non-bailable case then to cancel a bail once granted. That is
because cancellation of bail interferes with the. liberty already secured by the accused either
on the exercise of discretion by the court or by the thrust of law. This Court, therefore,
observed that the power to take back in custody an accused who has been enlarged on bail
has to be exercised with care and circumspection. That does not mean that the power though
extraordinary in character must not be exercised even if the ends of justice so demand. 3

3
Birendra Sahni-V-State of Bihar 2006(2) PLJR 256. (India)
 12

REVISION PETITION ON GRANTING OF BAIL:

It is possible to challenge granting of a bail by a Magistrate in a revision petition in the High

Court. In the Application for cancellation of bail, the logical reasoning that prevails is that the
granting of bail at the stage of its granting was quite proper but the supervening
circumstances made the continuation of bail legally untenable. Whereas in revision petition
what the applicant grieves about is that the granting of bail itself was not legally tenable. 4

In the matter of exercise of revision on a bail order, the Supreme Court and High Court have
issued contravening orders. The Supreme Court, in cases like Amar Nath & Others v State of
Haryana, Madhulimaye v State of Maharashtra, deals with the issue of bail. Relying on the
apex court orders the Allahabad High Court in State of UP v Karam Singh held that an order
granting bail in an interlocutory order and hence it cannot be challenged under exercise of
revision in a Sessions or High Court. But the Bombay High Court, relying on them, decided
the contrary in R Shakuntala v Roshan Lal. Some commentators consider the Bombay High
Court order is more appropriate.5

The issue of cancellation of bail is only an incidental matter in a criminal case. Therefore the
standard required to prove a case relating to bail is ‘preponderance of probalities’ and not
‘beyond reasonable doubt’ unlike as in other criminal matters.

4
Ibid.
5
Joginder Kumar V- State of U.P. AIR 1994 SC 1349. (India)
 13

ANTICIPATORY BAIL
Supreme Court in the case of Gurbaksh Singh, decided by a constitution bench air 1980 SC
1632, Bail-Anticipatory Bail-Section 438 of the Code of Criminal Procedure Code, 1973 (Act
2 of 1974), Scope of- Judicial balancing of personal liberty and the investigational powers of
the Police, explained.

The appellant herein, Sri Gurbaksh Singh Sibbia was a Minister of Irrigation and Power in
the Congress Ministry of the Government of Punjab. Grave allegations of political corruption
were made against him and others whereupon applications were filed in the High Court of
Punjab and Haryana under section 438 of the Criminal Procedure Code, praying that the
appellants be directed to be released on bail, in the event of their arrest on the aforesaid
charges. Considering the importance of the matter, a learned single Judge referred the
applications to a Full Bench, which by its judgment dismissed them, after summarising, what
according to it is the true legal position, of s. 438 of the Code of Criminal Procedure, :
(1) The power under Section 438, Criminal Procedure Code, is of an extra-ordinary character
and must be exercised sparingly in exceptional cases only.
(2) Neither Section 438 nor any other provision of the Code authorises the grant of blanket
anticipatory bail for offences not yet committed or with regard to accusations not so far
levelled.
(3) The said power is not unguided or uncanalised but all the limitations imposed in the
preceding Section 437, are implicit therein and must be read into Section 438.
(4) In addition to the limitations mentioned in Section 437, the petitioner must make out a
special case for the exercise of the power to grant anticipatory bail.
(5) Where a legitimate case for the remand of the offender to the police custody under
Section 167(2) can be made out by the investigating agency or a reasonable claim to secure
incriminating material from information likely to be received from the offender under Section
27 of the Evidence Act can be made out, the power under Section 438 should not be
exercised.

(6) The discretion under Section 438 cannot be exercised with regard to offences punishable
 14

with death or imprisonment for life unless the Court at that very stage is satisfied that such a
charge appears to be false or groundless.
(7) The larger interest of the public and State demand that in serious cases like economic
offences involving blatant corruption at the higher rungs of the executive and political power,
the discretion under Section 438 of the Code should not be exercised; and
(8) Mere general allegations of mala fides in the petition are inadequate. The court must be
satisfied on materials before it that the allegations of mala fides are substantial and the
accusation appears to be false and groundless. The argument that the appellants were men of
substance and position who were hardly likely to abscond and would be prepared willingly to
face trial was rejected by the Full Bench with the observation that to accord differential
treatment to the appellants on account of their status will amount to negation of the concept
of equality before the law and that it could hardly be contended that every man of status, who
was intended to be charged with serious crimes including the one under section 409 was
punishable with life imprisonment, "was entitled to knock at the door of the Court for
anticipatory bail". The possession of high status, according to the Full Bench, is not only an
irrelevant consideration for granting anticipatory bail, but is, if anything, an aggravating
circumstance.6

Hence the appeals by special leave. The appellants contended:

(a) The power conferred by section 438 to grant anticipatory bail is "not limited to the
contigencies" summarised by the High Court;
(b) The power to grant anticipatory bail ought to be left to the discretion of the Court
concerned, depending on the facts and circumstances of each particular case;
(c) Since the denial of bail amounts to deprivation of personal liberty; Courts should lean
against the imposition of unnecessary restrictions on the scope of Section 438, when no such
restrictions are imposed by the legislature in the terms of that section
(d) Section 438 is a procedural provision which is concerned with the personal liberty of an
individual who has not been convicted of the offence in respect of which he seeks bail and
who must be presumed to be innocent. The validity of that section must accordingly be
examined by the test of fairness and which is implicit in Article 21. If the legislature itself
were to impose an unreasonable restriction could have been struck down as being violative of

6
Judicial Officer Service Association — V- State of
Gujrat AIR 1991 SC 2176. (India).
 15

Article 21. Therefore, while determining the scope of section 438, the Court should not
impose any unfair or unreasonable limitation on the individual's right to obtain an order of
anticipatory bail. Imposition of an unfair or unreasonable limitation would be violative of
Article 21 irrespective of whether it is imposed by legislation or by judicial decision.

Allowing the appeals in part, Supreme Court, HELD:

1. The society has a vital stake in both of these interests namely, personal liberty and the
investigational power of the police, though their relative importance at any given time
depends upon the complexion and restraints of political conditions. The Court's task is how
best to balance these interests while determining the scope of section 438 of the Code of
Criminal Procedure, 1973.

2. The High Court and the Court of Session should be left to exercise their jurisdiction under
section 438 by a wise and careful use of their discretion which by their long training and
experience, they are ideally suited to do.

The ends of justice will be better served by trusting these courts to act objectively and in
consonance with principles governing the grant of bail which are recognised over the years,
than by divesting them of their discretion which the legislature has conferred upon them, by
laying down inflexible rules of general application. It is customary, almost chronic, to take a
statute as one finds it on the ground that, after all, "the legislature in its wisdom" has thought
it fit to use a particular expression. A convention may usefully grow whereby the High Court
and the Court of Session may be trusted to exercise their discretionary powers in their
wisdom, especially when the discretion is entrusted to their care by the legislature in its
wisdom. If they err, they are liable to be corrected. 7

3. Section 438(1) of the Code lays down a condition which has to be satisfied before
anticipatory bail can be granted. The applicant must show that he has "reason to believe" that
he may be arrested for a non-bailable offence. The use of the expression "reason to believe"
shows that the belief that the applicant may be so arrested must be founded on reasonable
grounds. Mere 'fear' is not 'belief', for which reason it is not enough for the applicant to show

7
Bhim Singh —V-State of J&K- AIR 1986 SC 494 (India)
Meja Singh-V- SHO police station, Ziro 1991 ACJ 439 (India).
 16

that he has some sort of a vague apprehension that some one is going to make an accusation
against him, in pursuance of which he may be arrested. The grounds on which the belief of
the applicant is based that he may be arrested for a non- bailable offence, must be capable of
being examined by the court objectively, because it is then alone that the court can determine
whether the applicant has reason to believe that he may be so arrested. 8

Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as
if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications
for anticipatory bail will be as large, as, at any rate, the adult populace. Anticipatory bail is a
device to secure the individual's liberty; it is neither a passport to the commission of crimes
nor a shield against any and all kinds of accusation, likely or unlikely. 9

Secondly, if an application for anticipatory bail is made to the High Court or the Court of
Session it must apply its own mind to the question and decide whether a case has been made
out for granting such relief. It cannot leave the question for the decision of the Magistrate
concerned under Section 437 of the Code, as and when an occasion arises. Such a course will
defeat the very object of Section 438.

Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of
the power under Section 438. The imminence of a likely arrest founded on a reasonable belief
can be shown to exist even if an F.I.R. is not yet filed.

Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant
has not been arrested.

Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused. The
grant of "anticipatory bail" to an accused who is under arrest involves a contradiction in
terms, in so far as the offence or offences for which he is arrested, are concerned. After arrest,
the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants
to be released on bail in respect of the offence or offences for which he is arrested.

8
Union of India —V-Thamisharasi 1995 SCC (Cr,) 665 (India)
C. Satyanarayana-V- State 1986 SCC 141. (India).
9
Mittal-V-Govt. of Karnataka AIR 2008 SC 1126. (India)
 17

4. However, a "blanket order" of anticipatory bail should not generally be passed. This flows
from the very language of the section which requires the appellant to show that he has
"reason to believe" that he may be arrested. A belief can be said to be founded on reasonable
grounds only if there is something tangible to go by on the basis of which it can be said that
the applicant's apprehension that he may be arrested is genuine.

That is why, normally, a direction should not issue under Section 438(1) to the effect that the
applicant shall be released on bail "whenever arrested for which ever offence whatsoever".
That is what is meant by a 'blanket order' of anticipatory bail, an order which serves as a
blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any
eventuality, likely or unlikely regarding which, no concrete information can possibly be bad.

The rationale of a direction under Section 438(1) is the belief of the applicant founded on
reasonable grounds that he may be arrested for a non-bailable offence. It is unrealistic to
expect the applicant to draw up his application with the meticulousness of a pleading in a
civil case and such is not requirement of the section. But specific events and facts must be
disclosed by the applicant in order to enable the court to judge of the reasonableness of his
belief, the existence of which is the sine qua non of the exercise of power conferred by the
section.10

Apart from the fact that the very language of the statute compels this construction, there is an
important principle involved in the insistence that facts, on the basis of which a direction
under Section 438(1) is sought, must be clear and specific, not vague and general. It is only
by the observance of that principle that a possible conflict between the right of an individual
to his liberty and the right of the police to investigate into crimes reported to them can be
avoided.11

A blanket order of anticipatory bail is bound to cause serious interference with both the right
and the duty of the police in the matter of investigation because, regardless of what kind of
offence is alleged to have been committed by the applicant and when, an order of bail which
comprehends allegedly unlawful activity of any description whatsoever, will prevent the

10
Dinkar Rao-V-State of Mharastra 2004(l) Crimes (India)
11
Mahesh Kumar V-State of Bihar 2008(2) BBCJ 624. (India)
 18

police from arresting the applicant even if the commits, say, a murder in the presence of the
public. Such an order can then become a charter of lawlessness and weapon to stifle prompt
investigation into offences which could not possibly be predicated when the order was
passed. Therefore, the court which grants anticipatory bail must take care to specify the
offence or offences in respect of which alone the order will be effective. The power should
not be exercised in a vacuum.

5. An order of bail can be passed under section 438(1) of the Code without notice to the
Public Prosecutor. But notice should issue to the public prosecutor or the Government
Advocate forthwith and the question of bail should be re-examined in the light of the
respective contentions of the parties. The ad-interim order too must conform to the
requirements of the section and suitable conditions should be imposed on the applicant even
at that stage.

6. Equally the operation of an order passed under section 438(1) need not necessarily be
limited in point of time. The Court may, if there are reasons for doing so, limit the operation
of the order to a short period until after the filing of an F.I.R. in respect of the matter covered
by the order. The applicant may in such cases be directed to obtain an order of bail under
Section 437 or 439 of the Code within a reasonably short period after the filing of the F.I.R.
as aforesaid. But this need not be followed as an invariable rule. The normal rule should be
not to limit the operation of the order in relation to a period of time.12

7. Bail is basically release from restraint, more particularly release from the custody of the
police. The act of arrest directly affects freedom of movement of the person arrested by the
police, and speaking generally, an order of bail gives back to the accused that freedom on
condition that he will appear to take his trial. Personal recognizance suretyship bonds and
such other modalities are the means by which an assurance is secured from the accused that
though he has been released on bail, he will present himself as the trial of offence or offences
of which he is charged and for which he was arrested.

The distinction between an ordinary order of bail and an order of anticipatory bail is that
whereas the former is granted after arrest and therefore means release from the custody of the

12
Rajesh Gulati v. Govt. NCT of Delhi, (2002) 6 SCALE 142 (India)
 19

police, the latter is granted in anticipation of arrest and is therefore effective at the very
moment of arrest. Police custody is an inevitable concomitant of arrest for non-bailable
offences.

An order of anticipatory bail constitutes, so to say, an insurance against police custody

following upon arrest for offence or offences in respect of which the order is issued. In other
words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if
the person in whose favour it is issued is thereafter arrested on the accusation in respect of
which the direction is issued, he shall be released on bail.

Section 46(1) of the Code of Criminal Procedure which deals with how arrests are to be
made, provides that in making the arrest the police officer or other person making the arrest
"shall actually touch or confine the body of the person to be arrested, unless there be a
submission to the custody by word or action". A direction under section 438 is intended to
confer conditional immunity from this 'touch' or confinement.

8. No one can accuse the police of possessing a healing touch nor indeed does anyone have
misgivings in regard to constraints consequent upon confinement in police custody. But,
society has come to accept and acquiesce in all that follows upon a police arrest with a certain
amount of sangfroid, in so far as the ordinary rut of criminal investigation is concerned. It is
the normal day-to-day business of the police to investigate into charges brought before them
and, broadly and generally, they have nothing to gain, not favours at any rate, by subjecting
ordinary criminal to needless harassment.

But the crimes, the criminals and even the complaints can occasionally possess extraordinary
features. When the even flow of life becomes turbid, the police can be called upon to inquire
into charges arising out of political antagonism. The powerful processes of criminal law can
then be perverted for achieving extraneous ends. Attendant upon such investigations, when
the police are not free agents within their sphere of duty, is a great amount of inconvenience,
harassment and humiliation. That can even take the form of the parading of a respectable
person in hand-cuffs, apparently on way to a court of justice. The foul deed is done when an
adversary is exposed to social ridicule and obloquy, no matter when and whether a conviction
is secured or is at all possible. It is in order to meet such situations, though not limited to
these contingencies, that the power to grant anticipatory bail was introduced into the Code of
 20

1973.

9. Clause (1) of Section 438 is couched in terms, broad and unqualified. By any known canon
of construction, words of width and amplitude ought not generally to be cut down so as to
read into the language of the statute restraints and conditions which the legislature itself did
not think it proper or necessary to impose. This is especially true when the statutory provision
which falls for consideration is designed to secure a valuable right like the right to personal
freedom and involves the application of a presumption as salutary and deep grained in our
Criminal Jurisprudence as the presumption of innocence.

The legislature conferred a wide discretion on the High Court and the Court of Session to
grant anticipatory bail because it evidently felt,
firstly, that it would be difficult to enumerate the conditions under which anticipatory bail
should or should not be granted and
secondly; because the intention was to allow the higher courts in the echelon a somewhat free
hand in the grant of relief in the nature of anticipatory bail.

That is why, departing from the terms of Sections 437 and 439, Section 438(1) uses the
language that the High Court or the Court of Session "may, if it thinks fit" direct that the
applicant be released on bail. Sub-section (2) of Section 438 is a further and clearer
manifestation of the same legislative intent to confer a wide discretionary power to grant
anticipatory bail. It provides that the High Court or the Court of Session, while issuing a
direction for the grant of anticipatory bail, "may include such conditions in such directions in
the light of the facts of the particular case, as it may think fit" including the conditions which
are set out in clauses (i) to (iv) of sub-section (2). The proof of legislative intent can best be
found in the language which the legislature uses.

Ambiguities can undoubtedly be resolved by resort to extraneous aids but words, as wide and
explicit as have been used in Section 438, must be given their full effect, especially when to
refuse to do so will result in undue impairment of the freedom of the individual and the
presumption of innocence. It has to be borne in mind that anticipatory bail is sought when
there is a mere apprehension of arrest on the accusation that the applicant has committed a
non-bailable offence. A person who has yet to lose his freedom by being arrested asks for
freedom in the event of arrest. That is the stage at which it is imperative to protect his
 21

freedom, in so far as one may, and to give full play to the presumption that he is innocent.

In fact, the stage at which anticipatory bail is generally sought brings about its striking
dissimilarity with the situation in which a person who is arrested for the commission of a
non-bailable offences asks for bail. In the latter situation, adequate data is available to the
Court, or can be called for by it, in the light of which it can grant or refuse relief and while
granting it, modify it by the imposition of all or any of the conditions mentioned in Section
437.

10. The amplitude of judicial discretion which is given to the High Court and the Court of
Sessions, to impose such conditions as they may think fit while granting anticipatory bail,
should not be cut down, by a process of construction, by reading into the statute conditions
which are not to be found therein like those evolved by the High Court. The High Court and
the Court of Session to whom the application for anticipatory bail is made ought to be left
free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on
the particular facts and circumstances of the case and on such conditions as the case may
warrant. Similarly, they must be left free to refuse bail if the circumstances of the case so
warrant, on considerations similar to those mentioned in Section 437 or which are generally
considered to be relevant under Section 439 of the Code.

Generalisations on matters which rest on discretion and the attempt to discover formulae of
universal application when facts are bound to differ from case to case frustrate the very
purpose of conferring discretion. No two cases are alike on facts and therefore, Courts have
to be allowed a little free play in the joints if the conferment of discretionary power is to be
meaningful. There is no risk involved in entrusting a wide discretion to the Court of Session
and the High Court in granting anticipatory bail because, firstly these are higher courts
manned by experienced persons, secondly their order are not final but are open to appellate or
revisional scrutiny and above all because, discretion has always to be exercised by courts
judicially and not according to whim, caprice or fancy. On the other hand, there is a risk in
foreclosing categories of cases in which anticipatory bail may be allowed because life throws
up unforeseen possibilities and offers new challenges. Judicial discretion has to be free
enough to be able to take these possibilities in its stride and to meet these challenges.

11. Judges have to decide cases as they come before them, mindful of the need to keep
 22

passions and prejudices out of their decisions. And it will be strange if, by employing judicial
artifices and techniques, this Court cuts down the discretion so wisely conferred upon the
Courts, by devising a formula which will confine the power to grant anticipatory bail within a
strait-jacket.

While laying down cast-iron rules in a matter like granting anticipatory bail, as the High
Court has done, it is apt to be overlooked that even Judges can have but an imperfect
awareness of the needs of new situations. Life is never static and every situation has to be
assessed in the context of emerging concerns as and when it arises. Therefore, even if this
Court were to frame a 'Code for the grant of anticipatory bail', which really is the business of
the legislature, it can at best furnish broad guidelines and cannot compel blind adherence.

In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of
discretion. But apart from the fact that the question is inherently of a kind which calls for the
use of discretion from case to case, the legislature has, in terms express, relegated the
decision of that question to the discretion of the Court, by providing that it may grant bail "if
it thinks fit".

The concern the Courts generally is to preserve their discretion without meaning to abuse it.
It will be strange if the Court exhibits concern to stultify the discretion conferred upon the
Courts by law. Discretion, therefore, ought to be permitted to remain in the domain of
discretion, to be exercised objectively and open to correction by the higher courts. The safety
of discretionary power lies in this twin protection which provides a safeguard against its
abuse.13

12. It is true that the functions of judiciary and the police are in a sense complementary and
not overlapping. An order of anticipatory bail does not in any way, directly or indirectly, take
away from the police their right to investigate into charges made or to be made against the
person released on bail. In fact, two of the usual conditions incorporated in a direction issued
under section 438(1) are those recommended in Sub-section (2)(i) and (ii) which require the
applicant to co-operate with the police and to assure that he shall not tamper with the
witnesses during and after the investigation. While granting relief under Section 438(1),

13
State of Tamil Nadu v. Senthil Kumar, AIR 1999 SC 971 : (1999) 2 SCC 646. (India)
 23

appropriate conditions can be imposed under Section 438(2), so as to ensure an uninterrupted

investigation. One of such conditions can even be that in the event of the police making out a
case of a likely discovery under Section 27 of the Evidence Act, the person released on bail
shall be liable to be taken in police custody for facilitating the discovery. Besides, if and
when the occasion arises, it may be possible for the prosecution to claim the benefit of
Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of
information supplied by a person released on bail.14

13. As section 438 immediately follows Section 437 which is the main provision for bail in
respect of non-bailable offences, it is manifest that the conditions imposed by s. 437(1) are
implicitly contained in Section 438 of the Code. The power conferred by section 438 is of an
"extra ordinary" character only in the sense that it is not ordinarily resorted to like the power
conferred by sections 437 and 439.

14. Since denial of bail amounts to deprivation of personal liberty, the Court should lean
against the imposition of unnecessary restrictions on the scope of section 438, especially
when no such restrictions have been imposed by the legislature in the terms of that section.
Section 438 is a procedural provision which is concerned with the personal liberty of the
individual, who is entitled to the benefit of the presumption of innocence since he is not, on
the date of his application for anticipatory bail, convicted of the offence in respect of which
he seeks bail. An over-generous infusion of constraints and conditions which are not to be
found in Section 438 can make its provisions constitutionally vulnerable since the right to
personal freedom cannot be made to depend on compliance with unreasonable restrictions.

15. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives
of furthering the ends of justice but from some ulterior Motive, the object being to injure and
humiliate the applicant by having him arrested a direction for the release of the applicant on
bail in the event of his arrest would generally, be made. On the other hand, if it appears likely
considering the antecedents of the applicant, that taking advantage of the order of anticipatory
bail he will flee from justice, such an order would not be made. But the converse of these
propositions is not necessarily true. That is to say it cannot be laid down as an inexorable rule
that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated

14
Hemlata Kantilal Shah v. State of Maharashtra, AIR 1982 SC 8 [LNIND 1981 SC 422]: (1981) 4 SCC 647
 24

by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the
applicant will abscond. There are several other considerations, too numerous to enumerate the
combined effect of which must weigh with the court while granting or rejecting anticipatory
bail. The nature and seriousness of the proposed charges, the context of the events likely to
lead to the making of the charges, a reasonable possibility of the applicant's presence not
being secured at the trial, a reasonable apprehension that witnesses will be tampered with and
"the larger interests of the public or the state" are some of the considerations which the court
has to keep in mind while deciding an application for anticipatory bail.

State of Maharashtra & Anr vs Mohd. Sajid Husain & others DATE OF JUDGMENT:
10/10/2007 BENCH: S.B. Sinha J & Harjit Singh Bedi J, 2008 AIR 155 , 2007(10 )SCR995 ,
2008(1 )SCC213 , 2007(12 )SCALE63 , 2007(11 )JT587

Code of Criminal Procedure, 1973: , S.439-Grant of anticipatory bail-Determining factors-

Discussed.

s.439-Anticipatory bail-Accused persons police officers and politicians-Charged with offence

of raping minor girl-Remaining underground-Sessions judge rejected their regular bail and
anticipatory bail-High Court allowed anticipatory bail-Correctness of-Held: Not correct as
victim needed protection-Moreover accused persons unscrupulously not complied with the
conditions imposed on them and also not present before the court number of times

The prosecution case was that the prosecutrix was staying with her maternal aunt `M' after
her mother remarried on death of her father. She was assaulted and abused by `M' and as a
result she left the home and started working in the house of accused `T' as a maid servant. In
the house of `T' some girls used to come. After few days when one girl did not come, `T' took
prosecutrix to a place where she was offered a soft drink and then against her will, was
subjected to rape. Thereafter she was regularly been sent out with various persons.
Respondents who are politicians, police officers and businessmen allegedly had been taking
her to hotel, government guest house and even to their own apartment. On one day, the
accused persons, named in the First Information Report took her to a hotel to take liquor.
However, the accused persons started behaving indecently with her. The police came and
 25

took all of them to the police station.

She was medically examined on samr day. Her Radiological (Bone) Assessment suggested
her age to be between 14-16 years. Respondents were not named in the First Information
Report. However, prosecutrix made several statements thereafter implicating the
respondents.

When respondents came to know that they have been named by the said girl, they absconded.
They filed an application for anticipatory bail before the Sessions Judge which was
dismissed. Thereafter, they filed application for anticipatory bail before the High Court which
was allowed on the ground that the prosecutrix being major and having willingly consented
for sex for consideration, prima facie, a case under s.376 IPC is not made out and that since
prosecutrix was stationed in the Remand Home she was fully protected.

In appeal to this Court, State contended that the High Court committed a serious error in
passing the impugned judgment inasmuch as from various public documents, it is evident
that, at all material times, namely, she was minor and in that view of the matter, the purported
consent given by her would not be of much significance; that in the First Information Report,
the names of the respondents had not been taken, but in a case of this nature, the court should
have considered the fact that she had been arrested by the police and as such it is just possible
that she was not in a position to recollect all the details.

Allowing the appeal, the Court

HELD:
1. The four factors, which are relevant for considering the application for grant of
anticipatory bail, are :
"(i) the nature and gravity or seriousness of accusation as apprehended by the applicant;
(ii) the antecedents of the applicant including the fact as to whether he has, on conviction by a
Court, previously undergone imprisonment for a term in respect of any cognizable offence;
(iii) the likely object of the accusation to humiliate or malign the reputation of the applicant
by having him so arrested; and
(iv) the possibility of the appellant, if granted anticipatory bail, fleeing from justice."
 26

2.1. If the prosecutrix was a minor, consent on her part will pale into insignificance. She had
been medically examined and her approximate age on the basis of radiological test was
determined to be between 14 to 16 years. Her date of birth was recorded on 04.07.1996 by the
Parbhani Municipal Council as `28.06.1991'. The said certificate was issued on 29.05.2007,
but evidently the date of registration of the said certificate was 04.07.1996 i.e. much before
any controversy arose. Three school leaving certificates had been placed wherein her date of
birth was shown as 28.06.1991. She had been, as per the said certificates, studying in 9th
standard. She dropped out from the school.

2.2. The date of issuance of the certificates had not been stated, but evidently such certificates
had been obtained by the prosecution. It may be true that in the First Information Report as
also in her first supplementary examination, her age was recorded as 18 years, but she had
been examined medically. The possibility of her trying to shield her from prosecution at the
time of her arrest and for that purpose disclosing her age to be 18 years cannot be ruled out.

2.3. A mistake in regard to her age as recorded in the First Information Report or the first
medical document or even in her supplementary affidavit should yield to the public
documents which have been produced by the prosecution at this stage. Even before the Chief
Judicial Magistrate, she disclosed her date of birth to be 22.06.1991. Therefore, even
according to that she was below 16 years of age.

3. Out of the eight respondents, five are police officers, two are politicians and one is owner
of a hotel. It is not in dispute that after having come to learn that their names had been taken
by the prosecutrix in her supplementary statement, they had been absconding for a long time.
The respondents had not scrupulously complied with the conditions imposed upon them.
Admittedly, at least on four occasions, some of them were not present.

4. The High Court has in regard to the first factor envisaged under the Maharashtra
Amendment of s.438 of the Code of Criminal Procedure proceeded on the basis that the
prosecutrix was a girl of easy virtue. This may be so but the same by itself may not be a
relevant consideration. A case of this nature should be allowed to be fully investigated. Once
a criminal case is set in motion by lodging an information in regard to the commission of the
offence in terms of s.154 Cr. PC, it may not always be held to be imperative that all the
 27

accused persons must be named in the First Information Report. It has not been denied nor
disputed that the prosecutrix does not bear any animosity against the respondents. There is no
reason for her to falsely implicate them. It is also not a case that she did so at the behest of
some other person, who may be inimically disposed of towards the respondents. The
prosecution has disclosed the manner in which she was being taken from place to place which
finds some corroboration from the testimonies of the other witnesses and, thus, at least at this
stage her evidence should not be rejected outrightly. Parameters for grant of anticipatory bail
in such a serious offence, being under ss. 376, 376(2)(g) IPC are required to be satisfied.
5.1. Immoral trafficking is now widespread. Victims, who are lured, coerced or threatened for
the purpose of bringing them to the trade should be given all protection. At this stage, this
court need not enter into the details in regard to the merit of the matter so as to prejudice the
case of one party or the other at the trial, but it is now well-settled principle of law that while
granting anticipatory bail, the court must record the reasons therefor.

5.2. Immoral conduct on the part of police officers should not be encouraged. It is not
understandable as to how the police officers could go underground. They had been changing
their residence very frequently. Although most of them were police officers, their
whereabouts were not known. During the aforementioned period attempts had been made
even by `M' to obtain the custody of the girl at whose instance, is not known. On the one
hand, `M' had been praying for the custody of the girl and the mother of the girl had affirmed
an affidavit in relation to her date of birth. These may not be acts of voluntariness on their
part. It, therefore is a case where no anticipatory bail should have been granted.

6. The High Court itself has refused to grant regular bail to the accused against whom charge-
sheet has been submitted. The Session Judge also did not grant bail to some of the accused
persons. If on the same materials, prayer for regular bail has been rejected, there is no reason
to enlarge respondents on anticipatory bail. In the peculiar fact and circumstances of the case,
the High Court ought not to have granted anticipatory bail to the respondents.
 28

CANCELLATION OF BAIL: AN EXERCISE ON DISCRETION

In cancellation of bail, the court has ample power to exercise discretion. But no guidance is
given by the statutes as to when and how it is to be exercised. However an order of the
Madras High Court in Public Prosecutor v George Williams (AIR 1951 Mad 1042) elaborates
that the bail granted to an accused can be cancelled when the person on bail commits the very
same offence, hampers the investigation, tampers with the evidence, runs away to a foreign
country, goes underground/beyond the control of his sureties or commits any act of violence
against the police/witnesses. In such cases, the High Court/Court of Session can direct any
person released on bail be arrested. Nevertheless, the power is to be cautiously used in due
consideration of facts and circumstances of the case. The power in this regard under section
439(2) of the CrPC is quite wide.

In this case, the person had been convicted in S. C. No. 67 of 1949, by the learned Sessions
Judge of Tinnevelly division under Section 120(B), Penal Code, read with Section 420, Penal
Code, for having conspired with 23 other accused to cheat members of the public by
promising to give them two counterfeit five rupee notes for one genuine five rupee note. Of
course the genuine notes were taken and the others not given. This accused was held to be the
prime mover and ringleader in this huge conspiracy. during the period when he was on bail,
went on committing similar offences of cheating people by such promises of giving two
counterfeit notes for one genuine note, as those for which he was convicted in S. C. No. 67 of
1949 and that he was arrested and remanded to custody on 24-1-1951 at Shenkottah Railway
station when he was found with a suit case containing one bundle of 48 genuine five rupee
currency notes, and 15 other bundles of blank white paper cut to the size of five rupee
currency notes pasted over either side of the bundle, and 12 other bundles of white paper cut
to the size of five rupee currency notes.
 29

The application by the Public Prosecutor is opposed by Mr. Basi Reddi for the first accused,
only on a legal ground, he not disputing the facts alleged by the Public Prosecutor. Mr. Basi
Reddi's contention is that once this Court has granted bail to an accused in an appeal under
Section 426, Cri. P. C., as was the case where bail was granted to this accused in Cri. M. P.
No. 1076 of 1950, it has no power to cancel that bail, whatever the conduct of the person let
on bail may be subsequent to the granting of bail, as Section 497 (5), Cri. P. C., will apply
only to accused persons who are let on bail by a High Court before conviction and will not
apply to persons (who are convicted) granted bail during the pendency of the appeal, and as
Section 561-A, Cri. P. C., too will not have any application to bail matters which are wholly
governed by Section 497 (5) and Section 426, Cri P. C., as held by the Privy Council.

there are five cases where a person granted bail may have the bail cancelled and he
recommitted to jail:--(1) Where the person on bail, during the period of bail, commits the
very same offence for which he is being tried or has been convicted, and thereby proves his
utter unfitness, to be on bail, as in the present case, if the facts alleged by the learned Public
Prosecutor (and they are not controverted by Mr. Basi Reddi, for accused 1) are true; (2) If he
hampers the investigation as will be the case if he, when on bail, forcibly prevents the search
of places under his control for the corpus delicti or other incriminating things; (3) If he
tampers with the evidence, as by intimidating the prosecution witnesses interfering with the
scene of offence in order to remove traces or proofs of the crime, etc. (4) If he runs away to a
foreign country, or goes underground, or beyond the control of his sureties; and (5) If he
commits acts of violence, in revenge, against the police and the prosecution witnesses and
those who have booked him or are trying to book him.

As this case falls under the first category, the bail granted in Cri. M. P. No. 1076 of 1950 to
the first accused in S. C. No. 67 of 1949 of the Tirunelveli division, George Williams alias
Victor (the appellant in Cri. A. P. No. 387 of 1950 on the file of this Court) is cancelled under
the inherent powers of this Court under Section 561-A, Criminal P. C. similar to the powers
under Section 497 (5), Criminal P. G and he is directed to be rearrested and committed to
custody forthwith.

If the bail is granted by the HC, the Sessions Court cannot cancel it, unless new
circumstances not known earlier crop up during the trial. If the Court of Sessions has granted
bail to a person, the state can approach the HC. Even an informant, when there is a real threat
or risk to him or his party, has the power to move the court for cancellation of bail under
 30

section 439 (2) of CrPC and the court must take a decision considering whether there is any
abuse of the process of the court or gross miscarriage of justice.

The “discretion, when applied to a court of justice, means sound discretion guided by law. It
must be governed by rule, not by humor; it must not be arbitrary, vague and fanciful, but
legal and regular” and it “must be exercised, not in opposition to, but in accordance with,
established principles of Law”.
31
 32

PRESENCE OF COGENT REASONS FOR BAIL CANCELLATION

Bail granted once should not be cancelled in a mechanical manner. Very cogent reasons are
necessary for cancelling the bail already granted. The absence of any post-release misconduct
is a compelling reason to rejct an application for cancellation of bail. Even a third party can
apply for cancellation of bail. The High Court has ample jurisdiction to exercise the power
suo moto. However, mere allegation of the threat to witness should not be utilized as a
ground for cancellation of bail. The court should carefully weigh the acceptability of the
allegations and pass orders as circumstances demand and Law warrants. The court cannot
cancel bail on any alien ground not mentioned in the law.

The basic grounds for cancellation are interference with the course of justice, evasion of due
process of justice or abuse of the conditions granted to accused in any manner. While
considering the cancellation application the question of individual liberty of the accused is to
be put in juxtaposition with the societal concern in the crime at hand. The latter deserved
priority over the former. The law provides great discretion to the judge considering the bail
application. Merits or demerits of the case should not be highlighted by the court while
granting or refusing bail.
 33

CONCLUSION
The object of pre-trial detention of the accused is not to impose punishment but to subject
himt o the penal procedures of Law. The “bail is not to be withheld as a punishment, but that
the requirements as to bail are merely to secure the attendance of the prisoner at trail”.
Therefore granting of bail should be resorted to only in rarest of therare cases where the
accused on bail has done something wholly against the sanctity of legal provisions of bail.
Though The sub-sec. (2) of S. 439 vests the power of cancellation upon the High Court and
the Court of Session concurrently, it has been laid down by the Supreme Court in Gurcharan
Singh Vs. State (Delhi Administration) that under Section 439 (2) of the new Code a High
Court may commit a person released on bail under Chapter XXXIII by any Court including
the Court of Session to custody if it thinks it appropriate to do so. It must, however, be made
clear that the Court of Session cannot cancel a bail which has already been granted by the
High Court unless new circumstances arise during the progress of the trial after an accused
person has been admitted on bail by the High Court. If however, a Court of Session had
admitted an accused person to bail, the State has two options. It may move Sessions Judge if
certain new circumstances have arisen which were hot earlier known to the State and
necessarily, therefore, to that Court. The State may as well approach the High Court being the
superior Court under S. 439(2) to commit the accused to custody. When, however, the State
is aggrieved by the order of the Sessions Judge granting bail and there are no new
circumstances that have cropped up except those already existing, it is futile for the State to
move the Sessions Judge again and it is competent in law to move the High Court for
cancellation of the bail. This position follows from the subordinate position ofthe Court of
Session visa-vis the High Court.
 34

BIBLIOGRAPHY
The researcher has consulted following sources to complete the rough proposal:

PRIMARY SOURCES:

1. Code of Criminal Procedure (1973).

2. Judgments.

SECONDARY SOURCES:

1. BOOKS:

a. Author: R V KELKAR, CRIMINAL PROCEDURE, Published by Eastern Book

Company (2008)

b. Author: Ratanlal and Dhirajlal, Code of Criminal Procedure, Published by Lexis

Nexis (2017)

2. WEBSITES:

a. https://www.livelaw.in

b. https://enotes.com

c. https://blog.ipleaders.in

d. https://legallyindia.com